Use of CafCass officers in Private Law Cases

West Yorkshire Memorandum: Use of Cafcass Officers in Private Law Cases

Reason for this Memorandum

  1. The Cafcass resource is finite and is under strain throughout England, particularly in a number of areas including West Yorkshire.]
  • This memorandum is a reminder about the importance of conserving the finite Cafcass resource and the way in which decisions by the court can help or hinder this.
  • In particular, this memorandum is a reminder about the legal principles and good practice when the court is considering whether to make a child a party to private law proceedings of which they are the subject. West Yorkshire has a higher incidence of these cases than most areas of England. When a child is made a party to private law proceedings it usually results in the appointment of a Cafcass officer as the child’s guardian, and such cases are often particularly time-consuming for the officer appointed.

The decision to make a child party: the legal principles

  • The question for the court is never ‘does the court want a children’s guardian in this case?’
  • Instead the appointment of a guardian is only the third step in the following sequence[1]:
  • should the child be made a party to the proceedings? This is addressed by FPR 2010, r16.2 and PD16A. In summary, although “The court may make a child a party to proceedings if it considers it is in the best interests of the child to do so” (r16.2(1)), it “is a step that will be taken only in cases which involve an issue of significant difficulty and consequently will occur in only a minority of cases …” (PD16A, para 7.1);
  • if the child is made a party, do they need a children’s guardian? This is addressed by FPR r16.4 and r16.6[2]. In summary, they must have a children’s guardian (r16.4(1)) unless, in the case of an older child, the court thinks they can properly represent themselves in the matter or a solicitor considers they have sufficient understanding to give instructions and has accepted instructions to act (r16.6(3));
  • if they need a children’s guardian, who should it be? This is addressed by r16.24, PD16A, the Cafcass Practice Note (2006) and the OS Practice Note (2017). In summary, although there are other possibilities in theory[3], in practice it will usually be a Cafcass officer who is to be appointed.
  • PD16A, paras 7.1-7.4 are set out as Appendix 1 to this Memorandum.

The decision to make a child party: good practice

  • First and foremost, the court should think long and hard before making a child party to private law proceedings, particularly in any case where local authority social care are already involved with the family[4]. What are the alternatives? Will it cause delay? Is it really necessary to do this? 
  • Secondly, if the best interests of the child require them to be made a party to such proceedings and the child is older and mature, consider carefully whether they need a children’s guardian or whether instead they can and should be represented on their own instructions to their own solicitor.
  • Thirdly, where the best interests of the child require them to be made a party and they have to have a children’s guardian who will come from Cafcass the key is to be clear throughout with the children’s guardian and the child’s solicitor what is what is and is not needed and, wherever possible, to limit the workload on the children’s guardian.
  1. [Note: when an application is issued to extend, vary or discharge a section 8 order, if the child was party to the original proceedings the child is automatically party to the new proceedings (FPR 2010 r12.3(1)) although the court has power to remove the child as party (FPR 2010 r12.3(3))[5].]
  1. Good practice includes:
  • unless a Cafcass officer has recommended the child is made a party, the court should try to seek the views of Cafcass (as well as the parties) before taking that step, either from a Cafcass officer involved in the matter or from a Cafcass manager[6];
  • if the court makes a child a party without doing this it should expressly provide that it will hear any representations about this from Cafcass / on behalf of the child at the next case management hearing;
  • whenever the court makes a child a party it should:
  • briefly set out the reason(s) why it decided this is in the best interests of the child, and
  • postpone further case management to a further hearing listed approximately 3 weeks later to allow time for Cafcass to allocate an officer to the matter, instruct a solicitor for the child and to consider on behalf of the child their case-plan and the directions they seek[7]. In particular, no substantive report should be ordered at this point;
  • the role of a Cafcass officer acting as children’s guardian in such cases is defined by FPR 2010, r16.27 and PD16A paras 7.6-7.7 (the latter incorporating the provisions of paras 6.1-6.11). These make it clear both that the children’s guardian has professional freedom and that the court can give them directions. It is important the court explains to the children’s guardian and the solicitor for the child what it does and does not need them to do and this should be recorded from time to time on the face of case management orders;
  • in cases where the court has decided that it is in the best interests of the child for them to be made a party because it needs evidence gathered and put before it for a fact-finding hearing (‘ a factfinding case’) this work may wholly or largely fall to be done by the solicitor for the child (and the local authority social worker if they are involved);
  • the court should consider whether the children’s guardian needs to attend case management hearings if the solicitor for the child will have instructions to deal with any matter likely to arise;
  • the court will usually be able to excuse the children’s guardian from attending any fact-finding hearing;
  • the court should consider whether the children’s guardian needs to attend all of any welfare hearing;
  • whenever a children’s guardian needs to attend a hearing the court should consider whether they need to attend in person or can do so remotely;
  • the court should review the child’s party status at key points as the case progresses. For example, it may no longer be necessary:
  • if social care become involved with the family during the case;
  • after a fact-finding process has been completed;
  1. A draft order (which can be adapted) is set out set out as Appendix 2 to this Memorandum.
  1. Cafcass manager names and contact details are set out set out as Appendix 3 to this Memorandum.

Other ways to reduce the burden on Cafcass in private law cases

  1. There are various other ways in which, with thought and care, the court can help to reduce the overall burden on Cafcass in West Yorkshire. For example:
  • is a section 7 report really needed at all? [Might want to give examples of where it might not be needed?]
  • if a section 7 report is needed, can and should it be prepared by local authority social care instead of Cafcass? [Expand?]
  • where a private law case has an urgent hearing the court may be able not only to deal with the urgent issue that caused the urgent hearing but also to deal with the case management that would otherwise be done at a FHDRA. For example, if it is clear that local authority social care are involved with the family (indeed quite often a social worker attends that hearing) and obvious that a s7 report will be needed the court can there and then direct that the local authority prepares a s7 report[8] and list the matter for a DRA shortly after that. This saves Cafcass from having to prepare what is usually an unnecessary safeguarding report [would Cafcass like to add how much time it typically takes to do this?] and saves everyone, including Cafcass an unnecessary FHDRA[9] and shortens the case.
  • [other suggestions …]

HHJ Hillier, Designated Family Judge

Michelle Evans, Assistant Director, Cafcass

[DJ Shepherd, member of the West Yorkshire Family Justice Board, private law working group]

[DJ Prest QC]

[Date]

Appendix 1: FPR 2010, PD16A paras 7.1 – 7.4

7.1

Making the child a party to the proceedings is a step that will be taken only in cases which involve an issue of significant difficulty and consequently will occur in only a minority of cases. Before taking the decision to make the child a party, consideration should be given to whether an alternative route might be preferable, such as asking an officer of the Service or a Welsh family proceedings officer to carry out further work or by making a referral to social services or, possibly, by obtaining expert evidence.

7.2

The decision to make the child a party will always be exclusively that of the court, made in the light of the facts and circumstances of the particular case. The following are offered, solely by way of guidance, as circumstances which may justify the making of such an order –

(a) where an officer of the Service or Welsh family proceedings officer has notified the court that in the opinion of that officer the child should be made a party;

(b) where the child has a standpoint or interest which is inconsistent with or incapable of being represented by any of the adult parties;

(c) where there is an intractable dispute over residence or contact, including where all contact has ceased, or where there is irrational but implacable hostility to contact or where the child may be suffering harm associated with the contact dispute;

(d) where the views and wishes of the child cannot be adequately met by a report to the court;

(e) where an older child is opposing a proposed course of action;

(f) where there are complex medical or mental health issues to be determined or there are other unusually complex issues that necessitate separate representation of the child;

(g) where there are international complications outside child abduction, in particular where it may be necessary for there to be discussions with overseas authorities or a foreign court;

(h) where there are serious allegations of physical, sexual or other abuse in relation to the child or there are allegations of domestic violence not capable of being resolved with the help of an officer of the Service or Welsh family proceedings officer;

(i) where the proceedings concern more than one child and the welfare of the children is in conflict or one child is in a particularly disadvantaged position;

(j) where there is a contested issue about scientific testing.

7.3

It must be recognised that separate representation of the child may result in a delay in the resolution of the proceedings. When deciding whether to direct that a child be made a party, the court will take into account the risk of delay or other facts adverse to the welfare of the child. The court’s primary consideration will be the best interests of the child.

7.4

When a child is made a party and a children’s guardian is to be appointed –

(a) consideration should first be given to appointing an officer of the Service or Welsh family proceedings officer. Before appointing an officer, the court will cause preliminary enquiries to be made of Cafcass or CAFCASS CYMRU. For the relevant procedure, reference should be made to the practice note issued by Cafcass in June 2006 and any modifications of that practice note.

(b) If Cafcass or CAFCASS CYMRU is unable to provide a children’s guardian without delay, or if for some other reason the appointment of an officer of the Service of Welsh family proceedings officer is not appropriate, rule 16.24 makes further provision for the appointment of a children’s guardian.

Appendix 2: a draft order

This draft order follows but also develops the current version of the approved standard order. As ever, it may need to be amended in any particular case.

Recitals

The court has decided that it is in the best interests of the child to be made a party to the proceedings because [brief reason(s)]

The court has decided that it is necessary for a children’s guardian to be appointed and that an officer of Cafcass should be appointed

Order

  1. [The child] is joined as a party to the proceedings and an officer of Cafcass must be appointed to act as children’s guardian.
  • The court must urgently send a copy of this order to the Cafcass service manager [does Cafcass want particular details to go in here?] who must tell the court who it has allocated. If Cafcass is unable to allocate a children’s guardian within 7 days of service of this order it must tell the court straightaway
  • The officer allocated by Cafcass will be the appointed children’s guardian. They must promptly appoint a solicitor to act for the child who must inform the other parties that they have been appointed
  • [As this order was made without the court being able to consider any views from Cafcass about (a) making the child a party, (b) whether they need a children’s guardian and (c) if so who should be appointed as children’s guardian, the court will reconsider these matters at the next hearing if Cafcass so requests. No formal application needs to be issued but Cafcass / the solicitor for the child should inform the court and the other parties not less than 2 working days before the next hearing if they are seeking such a reconsideration]
  • Not less than 2 working days before the next hearing, the solicitor for the child shall file and serve a concise case plan setting out what steps they and the children’s guardian consider need to be taken to enable the court to deal with the case justly having regard to the welfare issues involved
  • The matter is listed for a further case management hearing on [date approximately 3 weeks later etc] at which the court will
  • [if asked to do so, reconsider its order that the child is joined as a party to the proceedings and an officer of Cafcass must be appointed to act as children’s guardian]
  • give directions about what the court does or does not require the children’s guardian to do
  • give directions to bring the matter to a conclusion / fact-finding determination including [any particulars]
  • [make interim orders about …]

Appendix 3: Cafcass manager names and contact details

Rosie Jakob – 07774016564

Rob Fordyce – 07500105913

Sam Taylor – 07917210845

Vicky Thompson – 07919211202

[1] FPR 2010, Pt 16 is complex and the explanation in this Memorandum is somewhat simplified.

[2] FPR 2010, r16.3 has very limited application in the context of a private law case: it is applies to specified proceedings (defined at s41 CA 1989 and essentially being public law cases or cases with a public law dimension) and proceedings under FPR 2010, Pt 14 (essentially being adoption or adoption-related proceedings)..

[3] There is one particular possibility that merits exploration. The rules would allow the court to appoint a solicitor to act as the children’s guardian. This will not be appropriate in a case in which substantial welfare opinion is needed but I see no reason not to do this in cases where the court needs help in the preparation for a fact-finding. The criteria are set out in FPR 2010, r16.24, including that the solicitor consents and is willing to provide an undertaking to pay costs ordered against the child.

[4] The main exception to this is likely to be a ‘fact-finding case’ case in which the burden on the children’s guardian should be very limited as the evidence gathering can and should fall wholly or mainly on the local authority social worker and / or the solicitor for the child.

[5] Similar provisions apply if the application is for a private law order but is specified proceedings, for example where an application is made for live with order in respect of a child who is the subject of a care order:  FPR 2010 12.3(1) and see CA 1989, s41(6) for the definition of specified proceedings.

[6] Contrary to the widespread view, PD16 para 7.4(a) does not say that the court must make preliminary enquiries of Cafcass before making a child party to proceedings (the first question in the sequence). On the contrary, it clearly presupposes that the first and second questions have been answered ‘yes’ and then addresses the third question in the sequence: if there is to be a children’s guardian who should it be? It allows Cafcass to comment on whether someone else should be appointed as CG in those circumstances (and see r16.24) and, much more importantly in practice, it is intended to prevent the court from picking and choosing particular (liked) Cafcass officers and instead leaving it for Cafcass to decide which of its officers should be identified to be appointed (as the Cafcass Practice Note (2006) emphasises).

 

[8] cf FPR 2010, r12.6(d)

[9] Provision can still be made for the order to be served on Cafcass and for Cafcass to do a safeguarding report if it thinks it should and / or ask that a FHDRA is nevertheless listed.

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